The Founders’ Free Speech/Press Clause

I wonder why the Founders managed to say in so few words “Congress shall make no law … abridging the freedom of speech.” Perhaps they lacked the wisdom of current political class, being so unworldly and living in an ivory tower. Or perhaps they never imagined that the king would have such contempt for the laws enacted by the parliament.

Or perhaps the Founders, being politicians, enacted a broad generality that they agreed on, even though they had no consensus about exactly what it meant. I’m pretty certain that they did not mean that “Congress shall make no law … abridging the freedom of speech, or of the press” means that all speech restrictions — or at least all federal speech restrictions — are unconstitutional, period. Which part of “make no law” don’t you understand?, some people colorfully argue. Well, I understand “make no law” just fine, as do those who support the constitutionality of some speech restrictions. The real difficulty is with “the freedom of.”

As I argued last year (in a post from which this one is drawn), the First Amendment doesn’t say that Congress shall make no law restricting speech or press; rather, Congress can’t restrict “the freedom of speech” and “the freedom of the press.” Maybe that’s just a fancy way of saying “speech” and “press.” But maybe it suggests that “the freedom of speech” and “the freedom of the press” were references to broader legal concepts, the exact boundaries of which were not fully settled, but which were used to refer to limited freedom, not unlimited freedom. For instance, perhaps the freedom of speech and of the press were understood as excluding libel and slander, or possibly even obscenity, threats, and some other kinds of speech.

This interpretation is supported, I think, by the pre-First-Amendment state constitutional free press provisions (and, much less commonly, free speech provisions) that are written in absolute terms, yet coexisted with some speech restrictions, chiefly libel law. Thus, from Virginia in 1776: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” From Pennsylvania in 1776 (closely followed by Vermont in 1777): “That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.”

From Maryland in 1776: “That the liberty of the press ought to be inviolably preserved.” From North Carolina in 1776: “That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.” From Massachusetts in 1780 (closely followed by New Hampshire in 1784): “The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.” From Georgia in 1789: “Freedom of the press and trial by jury shall remain inviolate forever.” (Provisions in later state constitutions were much more likely to specifically provide that “abuse” of the freedom could lead to liability, but my sense is that those new provisions were not seen as deliberately shifting from a categorical protection for speech and press to a more limited protection.)

To my knowledge, these provisions were never seen as categorically banning libel and slander law. My sense is that there were nearly no calls, even unsuccessful calls, for reading those provisions that broadly. People did think that the provisions limited the scope of slander and libel law (both civil liability and the law of criminal libel), but not that the provisions categorically forbade such liability.

Some saw the freedom of the press as broader and some as narrower. Some saw the freedom of the press as including the freedom to publish what had been earlier seen as “seditious libel” and some saw it as not including this. Some saw it as chiefly forbidding licensing schemes (archetypical “prior restraints”) and perhaps judicial injunctions, while others saw it as also limiting the imposition of civil and criminal liability by juries.

But nearly everyone, as best I can tell, saw “freedom of speech” and “freedom of the press” as providing less than complete constitutional protection for spoken or printed words. And this suggests that the term “freedom of” referred to some understanding that there is a proper scope of such freedom (even if the scope was unsettled in some particulars), rather to unlimited freedom to say or print anything one pleases.

It’s much like, if tomorrow a state enacted a law protecting “the freedom to marry,” we probably wouldn’t think that it means the freedom to marry a 10-year-old, or the freedom to marry one’s daughter, or (depending on the circumstances) even the freedom to marry several people at once. “The freedom to marry” would be seen as referring to a broad but not unlimited concept that is less than the freedom to marry anyone one pleases.

Now, to be sure, during and after the controversy over the Sedition Act of 1798, some foes of the Act argued that the First Amendment did bar Congress from any authority to restrict spoken or printed words. But I’m rather skeptical that this was then or is now a sound interpretation of the constitutional text.

After all, as I noted, and as some others argued at the time, even seemingly categorical protection for “freedom of the press” in state constitutions wasn’t seen as precluding some restrictions on the press — “freedom of the press” was seen as the freedom for many uses of the press but not all uses. It stands to reason that equally categorical protection for “freedom of the press” in the federal Constitution would likewise provide protection for many uses of the press but not all uses.

And though it’s fair to say that national opinion and legal opinion in the early 1800s came to be against the Sedition Act, my sense is that this stemmed from the general conclusion that seditious libel should not be seen as outside the “freedom of the press”; seditious libel prosecutions even at the state level died down by the 1810s and 1820s. I don’t think it stemmed from a conclusion that Congress indeed lacked all power over speech and press, even when the restriction would be within an enumerated power of Congress (say, the power over D.C., the territories, or the post office) and even when similar state restrictions would be constitutional.

This notion that the freedom of speech and of the press is not unlimited makes sense. A threat to kill the President is literally speech. So is “your money or your life,” said to someone in a dark alley. Assume no weapon is brandished, and the victim escapes, so that no money changes hands; then “your money or your life” is nothing but speech. Attempted fraud is often nothing but speech. The list could go on.

There are, I recognize, arguments for barring the government from punishing any of this speech (likely arguments based on the value of super-sharp lines and of trying to eliminate all risk of valuable speech being punished). But if one is to appeal to the wisdom of “the Founders,” one should recognize that the Founders almost certainly did not understand “the freedom of speech, or of the press” as embracing absolute protection for speech and press.

Readers of this blog know that I take a broad view of First Amendment protection. I wish I could just say “the Constitution says it, I believe it, that settles it.” But, for the reasons I give here, I don’t think such an argument would be sound.